The Office of the Independent Adjudicator (OIA) has published new guidance on how it will handle freedom of speech and academic freedom complaints brought by students under new free-speech laws in England – and there are encouraging signs that it has taken on board some of the concerns recently raised by CAF about how the limits of its statutory remit would operate under the new regime
The guidance – Casework note: free speech and student complaints – appeared on 27 August, less than a month after CAF responded to an OIA consultation on proposed changes to its complaints scheme. Alongside it, the OIA published a series of case studies showing how it has approached free-speech disputes in practice.
The changes come against the backdrop of the Government’s January 2025 decision to exclude students from the Office for Students’ (OfS) new free-speech complaints scheme, created by the Higher Education (Freedom of Speech) Act 2023 (HEFSA) and launched on 1 September 2026.
While academics can now take complaints to the regulator, students will have to rely principally on the OIA as their specialist external route for complaints involving the duties to secure freedom of speech within the law inserted into the Higher Education and Research Act 2017 (HERA) by the 2023 Act.
As academic-freedom lawyer James Murray has pointed out, however, the two schemes operate rather differently. Whereas the OIA asks whether a university followed reasonable procedures, took account of the relevant law and reached a reasonable decision, the OfS asks whether the statutory free-speech duty was actually breached, applying the balance of probabilities. The consequence of this subtle but important difference in regulatory philosophy is that students may have a less direct route for enforcing their substantive rights under HERA than academics.
Despite its unassuming title, the casework note has therefore appeared at precisely the moment when students, returning to campus for the start of another academic year, need to know what the new regime means for them. Although the OIA’s consultation on its new complaints scheme has now closed, responses are still being considered and the new system is not expected to launch until September 2027. So while the OIA’s formal systems are catching up with the new statutory environment, the casework note is likely to remain the ombudsman’s clearest statement for some months of how it will approach student free-speech complaints.
That makes what it says about one of the OIA’s longstanding limitations particularly important. Under section 12 of the Higher Education Act 2004, which provides the statutory basis for the OIA scheme, the ombudsman cannot consider complaints “to the extent that” they “relate to matters of academic judgment”. Traditionally, that has prevented it from deciding whether a student deserved a higher mark, whether a dissertation met the required scholarly standard or whether an examiner reached the correct academic conclusion.
That is not, in itself, a problem. The OIA has long considered complaints involving freedom of speech and, as its own guidance explains, students “can complain to us about anything their provider has done or failed to do”. Yet the legal landscape has changed considerably since 2004, with HERA now requiring universities to take reasonably practicable steps to secure freedom of speech within the law for students and academics.
In Regulatory Advice 24, its guidance to universities on the new free-speech duties, the OfS makes clear that this duty may be engaged by decisions that go to the core of campus life, including teaching, curriculum design, reading lists, research and research ethics. In other words, decisions taken by academic staff may sit precisely where questions of academic judgment and statutory free-speech duties overlap.
That’s why, in its submission, CAF focused on what happens when the same facts in a student complaint raise both an issue of academic judgment and a possible breach of those duties.
The OIA’s draft scheme did not, in our view, make sufficiently clear whether, before treating part of a complaint as excluded academic judgment, the ombudsman would first identify whether those facts also raised a separate free-speech question under HERA. Without that clarification, students approaching the OIA might reasonably conclude that complaints arising from, say, marking, dissertation supervision or teaching on a particular module were liable to be excluded before the free-speech issues they raised had even been considered.
So far, that might sound largely like a problem of communication: the OIA may understand the distinction perfectly well, but needs to explain it clearly enough that students are not deterred from bringing complaints that fall within its remit.
One of its newly published case summaries, however, hints at a more unsettling possibility.
Case CS082602 concerned a student who claimed that assessed work for a core module had been marked down because of the political views it expressed, in violation of their freedom of speech. After the university rejected the complaint, the student took it to the OIA.
Ultimately, the OIA found no evidence of political bias. Three academics had identified the same shortcomings in the work, and the OIA concluded that the university had reasonably treated what remained of the complaint as a challenge to academic judgment. One part of its reasoning is, however, particularly interesting. “While we normally consider the content of feedback to be a matter of academic judgment,” the OIA said, “we noted that none of the feedback provided by the markers commented on any political ideology and there was no evidence to suggest that the mark was based on anything other than the assessment criteria.”
What, exactly, is “normally” doing in that sentence? Presumably, had the feedback shown that the student’s political views had influenced the mark, that would have mattered to the outcome, since it would have raised the question of whether the university had complied with its duties under HERA. But if so – and given that those duties have been in force since 1 August 2025 – why does looking for such evidence sit outside what the OIA describes as its normal approach to academic judgment in the first place? And might that mean some complaints which initially look like ordinary disputes about academic judgment are still not being screened for a second, quite different question: whether the university, acting through those responsible for supervising or assessing the work, complied with its duty to secure the student’s lawful freedom of speech?
CAF’s consultation response was necessarily directed at the first problem: how the OIA presents the scope of its Scheme to students. But Case CS082602 raises the possibility that the distinction we asked the OIA to spell out may also matter to the caseworkers deciding which parts of a complaint the OIA can and cannot consider. Put another way, this may not just be about whether students know which complaints they can bring to the ombudsman, but whether the OIA itself recognises the free-speech question when one arrives disguised as a dispute about academic judgment.
Encouragingly, the OIA’s new casework note suggests that it has been thinking along similar lines – and may have adopted some of our suggestions in ways that help with both its public guidance and, potentially, its casework.
On one point, the draft scheme was simply less precise than the legislation it was supposed to reflect. It stated: “We cannot consider complaints about academic judgment.” Section 12(2) of the Higher Education Act 2004 says something importantly different: a complaint is excluded only “to the extent that it relates to matters of academic judgment”.
As CAF pointed out, that apparently innocuous qualification has real import. It leaves room for one part of a complaint to involve academic judgment while another, arising from exactly the same facts, remains within the OIA’s remit.
It is therefore good to see the new casework note restore the statutory “to the extent that” formulation omitted from the draft scheme, while emphasising that the OIA interprets academic judgment “narrowly”.
There is a more substantial parallel, too. The explanatory note accompanying the draft scheme gave what, for the OIA, were the familiar examples of marks and grades as matters of academic judgment. Beyond that, it said the ombudsman could consider marking and moderation procedures, other relevant assessment processes, and “whether there was any bias or unfairness in the decision-making process”.
But of course the new statutory duties now contained in HERA may require the OIA to look more closely at complaints arising in precisely these areas. To make that point, CAF gave a hypothetical example remarkably similar to the case the OIA has now published: a student alleging that academic work had been penalised not because it fell short academically, but because it advanced a lawful but politically unwelcome conclusion or adopted a methodology to which an assessor objected on ideological grounds.
The question would not be whether the work deserved a higher mark, which would be a matter of academic judgment and outside the OIA’s remit, but whether there was evidence in the feedback or moderation process that the student had been penalised for their lawful expression or viewpoint, and whether the university had properly addressed its duties under HERA.
On that basis, we suggested adding the following sentence to the draft guidance:
“Where a complaint raises matters of academic judgment alongside other issues, we will first identify the particular questions raised and consider those which do not require us to determine academic judgment, including whether the provider acted fairly and complied with relevant legal duties and associated guidance.”
Now compare that with the OIA’s new casework note. Among the complaints it says it may consider is one where “a student believes their academic work has been marked unfairly because of the views expressed in it or because of the subject of their research”.
The note goes on: “Students do not always describe their complaint as being about freedom of speech. That does not mean the issue is irrelevant.” Providers, it says, “still need to identify and take account of the legal and regulatory responsibilities that apply to the circumstances of the case”. Elsewhere, the OIA confirms that when reviewing such complaints it will consider whether the provider took account of “the legal and regulatory responsibilities relevant to the case”.
The new note may not adopt CAF’s proposed wording verbatim, but it does much more to guard against what concerned us from the outset, namely, a student complaint raising a genuine issue under HERA being shut down before it is even triaged.
No-one is suggesting that, in opening up the concept of academic judgment to statutory scrutiny, the OIA will suddenly have to start remarking dissertations or resolving scholarly controversies. But in the era of HEFSA, and a renewed statutory determination to protect freedom of speech within the law on campus, it does need to make sure that concept does not inadvertently become a screen behind which separate issues of viewpoint discrimination, arising from exactly the same facts, slowly slip out of sight.
In this context, the OIA’s new casework note represents a meaningful step in the right direction – not just for students considering whether to make a complaint, but for the ombudsman itself as it adjusts to the new statutory landscape. Just as importantly, it augurs well for the final Scheme and accompanying guidance once the consultation process is complete.